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PAUL BONINGTON ET AL. v. TOWN OF WESTPORT ET AL. (SC 18514)
Rogers, C. J., and Norcott, Katz, Palmer, Vertefeuille, Zarella and McLachlan, Js.* Argued April 21--officially released July 6, 2010

Joseph M. Brophy, for the appellants (plaintiffs). Mark A. Perkins, for the appellees (defendants).

Opinion

KATZ, J. The plaintiffs, Paul Bonington and Julie Bonington, appeal1 from the summary judgment rendered in favor of the defendants, the town of Westport (town), the town's planning and zoning department (department) and three department employees (individual defendants)2 in the plaintiffs' negligence action. The plaintiffs had sought to recover litigation expenses they incurred in bringing an action against the owners of abutting property after the defendants allegedly had failed to enforce the town's zoning regulations, to inspect the abutting property properly and to rectify zoning violations on the abutting property. The dispositive issue on appeal is whether the trial court properly concluded that the individual defendants were shielded from liability by governmental immunity. We affirm the trial court's judgment. The record reveals the following undisputed facts and procedural history. In or about April, 2003, Sabin Associates, LLC (contractor), razed a dwelling on property that abutted the rear boundary of the plaintiffs' property (abutting property) and began construction of a new dwelling. In December, 2003, the abutting property was sold to Erik Mace and his wife, Rebecca Mace. From October, 2003, through some time in 2006, the plaintiffs repeatedly contacted the department to complain about changes that the contractor had made to the abutting property. Specifically, they complained that the contractor had imported substantial landfill that raised the grade of the abutting property approximately three to four feet over a large area at the rear boundary of the property and created a slope that increased the water runoff onto the plaintiffs' property, which caused flooding and threatened to erode a wall on the plaintiffs' property. The plaintiffs claimed that it was evident that the contractor had undertaken this action without having obtained the proper process, permits and authorization and that the regrading of the abutting property was in violation of several of the town's zoning regulations. Although, at one point in late 2003 or early 2004, the defendant Larry Bradley's predecessor as director of the department had told the plaintiffs that she was working with the contractor to respond to the plaintiffs' complaints, no changes were made to the abutting property. During that same period, the town's zoning enforcement officer, the defendant Susan Reynolds, and the town's zoning enforcement inspector, the defendant Mary Papadakos, separately inspected the abutting property, along with Bryan Thompson, an engineer in the town's department of public works. Reynolds, Papadakos and Thompson concluded that there were no zoning violations on the abutting property, a conclusion that was at some point communicated to the plaintiffs. The last written response the plaintiffs received from the defendants

was an August, 2005 letter from Papadakos stating that the ``[d]epartment [is] still investigating your complaint regarding [the abutting property]'' and that ``Reynolds will respond to your inquiries once our research is completed.'' Because they never received any satisfactory action from the defendants, the plaintiffs initiated a legal action against the Maces, who then owned the abutting property. At some unspecified time, that action was settled after the Maces agreed to correct the drainage problem and to rectify other concerns raised by the plaintiffs. Thereafter, the plaintiffs commenced the present negligence action against the defendants. In the first count of their revised complaint, brought against the department, Reynolds, Papadakos and Bradley, the plaintiffs alleged that they had been forced to initiate legal action against the Maces, at great expense in fees and costs, because of those defendants' ``continuing failure to do their job, their negligent methods of inspection or lack thereof and their continued failure to enforce or even rule on claimed violations of the [z]oning regulations . . . .'' Specifically, the plaintiffs alleged that those defendants had issued certain permits to the contractor despite property conditions that were not in conformity with zoning regulations. They further alleged that, each time they had complained, they were informed that no zoning violations had been found and that their complaints were being looked into, a conclusion that the defendants improperly had reached in reliance on the opinion of Thompson, who was an employee of another department not charged with making such findings.3 In the second count, brought against the town, the plaintiffs reasserted the allegations in the first count and alleged that those actions were imputed to the town pursuant to General Statutes

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